21-002631 Esther Nunes De Souza De Lima vs. Advent Health Hospital Status: Closed Recommended Order on Thursday, October 21, 2021.

Summary: Respondent was exempt from FCRA under ? 760.10(9), Florida Statutes, and the ?ministerial exception,? and petition should be dismissed.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

E STHER N UNES D E S OUZA D E L IMA ,

Petitioner ,

vs. Case No. 21 - 2631

A DVENT H EALTH H OSPITAL ,

Respondent .

/

R ECOMMENDED O RDER OF D ISMISSAL

This cause comes before the undersigned on AdventHealth's Motion to

Dismiss Petition for Relief (Motion) , filed September 21, 2021. 1 The parties

presented arguments at a motion hearing on October 6, 2021 , and provided

additional briefs, documentation, and/or proposed orders in support of their

positions after the hearing. Because the undersigned has considered the

documentation submitted by both parties in addition to the allegations in the

Petition for Relief (Petition), the Motion is t reated as a motion to relinquish

jurisdiction. See § 120.57(1)(i), Fl a. Stat. (2020). 2

S TATEMENT OF T HE I SSUE S

Petitioner alleges AdventHealth discriminated against her based on her

religion when it refused to make her a full - time Chaplain because she is

Baptist, and retaliated against her when she reported the discrimination.

The Motion asserts that Petitioner's claims are barred (1) by the "ministerial"

1 Petitioner erroneously identified Respondent as "Advent Health Hospital" in her Charge of

Discrimination and Petition filed with the Florida Commission on Human Relations (FCHR).

Respondent 's legal title is Advent Health System, Inc., d/b/a AdventHealth Orlando

(AdventHealth). For the purposes of these proceedings the case style shall remain as initially

filed.

2 All references to the Florida Statutes and Florida Administrative Code are to the 2020

versions.

and "religious organization" exemptions; (2) because they are untimely and

she failed to exhaust her a dministrative remedies; and (3) for lack of

jurisdiction because they are based on federal law, and not the Florida Civil

Rights Act (FCRA).

The dispositive issue presented is whether Petitioner can allege religious

employment discrimination and retaliat ion under the FCRA regarding her

position of Chaplain (a ministerial position) against AdventHealth (a

religious ly affiliated corporation). Having concluded that , even if what she

has alleged is true, Petitioner cannot establish a religious discrimination or

retaliation claim, it is unnecessary to determine whether the alleged

discriminatory or retaliatory action s indeed took place.

P ROCEDURAL H ISTORY

On February 12, 2021 , Esther Nunes De Souza De Lima (Petitioner) filed

a Charge of Discrimination with F C HR , alleging AdventHealth discriminated

against her due to her religious affiliation, Baptist, and for retaliat ing

against her for reporting that discrimination , in violation of s ections of the

FCRA.

On August 11, 2021 , FCHR issued a "Determination: No Re asonable

Cause" on Petitioner's Charge finding it was unlikely that discrimination

based on religion had occurred.

On August 31, 2021, Petitioner timely filed her 40 - page Petition with

FCHR, request ing an administrative hearing before the Division of

Ad ministrative Hearings (DOAH). Attached to the Petition was

documentation describing Petitioner's claims against AdventHealth ,

including:

• Petitioner's Statements regarding her claims

• Screenshots of ZipRecruiter messages and emails

• Graphs of Salary and Comp ensation History

• A Job Description and Posting for the Chaplain I position from 2016

• Petitioner's Timesheet from 2019

• Photos of Petitioner's Hospital Work Badges

• 2017 Performance Evaluation

• Professional Certificates

• Correspondence with FCHR

On September 1, 2021 , FCHR forwarded the Petition to DOAH f or the

assignment of an Administrative Law Judge to conduct all necessary

proceedings required under the law and submit recommended findings to

FCHR. Thereafter, the undersigned set this matter for a final hear ing on

October 28, 2021.

Petitioner filed several documents on September 8, 14, 15, 17, and 21,

2021, with DOAH including certificates of ordination, endorsements from

various religious organizations, emails, and yearly performance evaluations.

Thereafter , as stated above, on September 21, 2021, AdventHealth filed the

Motion, and a hearing on the Motion was held on October 6, 2021. After the

hearing, both parties filed supplemental briefings and documents. Petitioner

filed Final Administrative Hearings Doc uments (two parts) on October 14,

2021; and AdventHealth filed a Supplement to Motion to Dismiss and Motion

to Relinquish Jurisdiction or in the Alternative for Summary Judgment

(three parts) on October 15, 2021. AdventHealth 's Supplement included an

Affid avit of Corporate Representative of AdventHealth and corporate

documents. All filings have been considered in the preparation of this

Recommended Order of Dismissal .

F INDINGS OF F ACT

The allegations contained in Petitioner's Charge, Petition, and

document ation filed with DOAH are accepted as true for the purpose of this

Recommended Order of Dismissal and are quoted below where appropriate.

Parties

1. Petitioner is an ordained Baptist Chaplain. In June 2016 , she applied

for the position of "Chaplain" with F lorida Hospital.

2. AdventHealth is made up of a number of healthcare campuses and

medical institutions around the world, including AdventHealth Orlando f/k/a

Florida Hospital (Hospital).

3. Petitioner admits she does not know the corporate structure of

Ad ventHealth but notes that many employees are not Adventists.

4. AdventHealth is the largest Protestant, not - for - profit healthcare

company in the United States. It owns and/or operates hundreds of

healthcare facilities around the world, including the Hospit al. It is

headquartered in Altamonte Springs, Florida.

5. AdventHealth function s as an integral part of the total ministry of the

Seventh - day Adventist Church ( Adventist Church). The re is no dispute the

Adventist Church is a religious institution. As refl ected in its corporate

documents, the AdventHealth employee handbook, and the signature block of

AdventHealth employees' emails, the mission of AdventHealth is "Extending

the healing ministry of Christ."

6. Petitioner is not an Adventist nor has she been ordained by the

Adventist Church.

7. Ellis Greg supervised Petitioner at the Hospital. 3 Mr. Greg is a part of

the "Pastoral Care" division of the Mission and Ministry department of

AdventHealth and was responsible for signing paperwork related to

Petiti oner 's position, and for issuing her performance evaluations.

8. Juleun Johnson is the Director of "Mission & Ministry" for

AdventHealth, and the Lead Chaplain.

Employment History

9. Petitioner was hired on June 20, 2016, on a contractual or hourly basis

to work at the Hospital and other AdventHealth campuses. At the time

Petitioner was hired she believed her title was Chaplain. As proof, she points

to ID badges from Florida Hospital and AdventHealth that are blue and have

her first name, picture, and the following title: "CHAPLAIN Mission

Ministry." However, her Annual Performance Reviews indicate she was hired

into "Job Class: Chaplain's Assistant (CHA1)." Taking the facts in a light

most favorable to Petitioner, she was hired in the position of Chaplain .

10. The job description for the Chaplain position indicates it is a per diem

position, not salaried. Moreover, based on the documentation, Petitioner

worked on an "as needed" basis.

11. The Chaplain job summary also states in relevant part:

As a Chapla in, you will make providing service

your priority while caring for the whole person in a

faith - based atmosphere. Clinically trained minister

responsible for providing spiritual care to our

primary customers, partners, and team members.

Participates as a m ember of the healthcare team in

evaluating spiritual needs of patients and

providing appropriate interventions to meet such

needs.

3 Petitioner refers to her supervisor as Ellis Greg in the Petition and elsewhere , but the

documentation submitted by Petitioner indicates Petitioner reports to "Ellis, Gregory K."

For the purposes of this Order, Petitioner's supervis or will be referred to as " Mr. Greg. "

12. The Chaplain position also requires the following skills, education,

and experience:

Personal commitment to God.

Person al integrity and an ability to work under

stress.

Ability to effectively relate to persons of diverse

religious, educational, and cultural backgrounds .

Master of Divinity degree

Minimum of two units of Clinical Pastoral

Education

Congregational pastoral e xperience (Preferred)

Four - unit residency in Clinical Pastoral Education

(Preferred)

13. Based on Petitioner 's documentation, it is clear that the Chaplain

position for which she was hired was ministerial and religious in nature.

14. In contrast, the Cha plains who are ordained by the Adventist Church

have badges that are green that the Adventist C hurch has issued to them

with the title: STAFF CHAPLAIN . According to Petitioner , the Staff

Chaplains are salaried employees, receive higher pay and benefits, an d work

regular schedules.

15. It is clear that the Staff Chaplain position, to which Petitioner feels

she is entitled, is ministerial and religious in nature.

16. Petitioner wants to be a Staff Chaplain and receive the same salary,

benefits, and working c onditions as the Staff Chaplains.

Alleged Discriminatory and Retaliatory Actions

17. As alleged by Petitioner, Mr. Greg told Petitioner early on in her

employment that she would "never have an official full - time or part - time

position because it is a priv ilege for Seventh Day Adventists." In other words,

Petitioner was told she would not be a "Staff Chaplain" unless she was part of

the Adventist Church.

18. In her 2017 evaluation, Petitioner repeated what Mr. Greg had t old

her : she could not be an officia l Chaplain unless she was an Adventist .

My goal would be to become a Chaplain full time,

but I believe in miracle [sic] , and like my direct

supervisor Ellis Greg told me, it is not possible,

because I am not Seventh Day Adventist, I am

Baptist.

Petitione r made similar comments in her 2018, 2019, and 2020 performance

evaluations.

19. Petitioner claims that a fter she included the statement by Mr. Greg o n

her performance evaluations, he began to treat her badly.

20. For example, i n May 2019, Mr. Greg accu sed Petitioner of misusing

her computer to access confidential patient information. He required

Petitioner to talk to a Human Relations Business Partner in the Hospital's

Human Resources System/Support Department (HR). Petitioner was not

disciplined or ter minated as a result of this discussion with HR.

21. In September 201 9 , Petitioner discovered her title was actually

"Chaplain's Assistant," not "Chaplain." In her Charge and her Petition,

Petitioner claims that Mr. Greg demoted her to Chaplain Assistant in

September 2019. Even assuming her title was changed and she was demoted

in 2019, this demotion did not result in a cut in benefits or wages.

22. Mr. Greg also delayed executing her yearly evaluations in 2018, 2019,

and 2020. In her 2020 evaluation, Mr. Gr eg noted, "Esther is a valued

member of our contract team, ministering to patients and employees across a

number of our campuses. I affirm her spirit of caring and compassion."

Mr. Greg also stated Petitioner was a "blessing" and commended her "biblical

co unseling training," and "biblical counseling gifts." Again, nothing in these

evaluations were negative and Petitioner did not suffer any cut in pay or

benefits due to these delays.

23. Petitioner is still working at AdventHealth hospital campuses and

conti nues to be supervised by Mr. Greg, despite her recent requests to change

supervisors.

C ONCLUSIONS OF L AW

24 . Petitioner raises two claims: (1) she is being treated differently

because she is not a member of the Adventist Church; and (2) when she

complaine d about this disparate treatment based on religion, she was

retaliated against. Petitioner request s the following relief:

(1) Juleun Johnson , the Lead Chaplain at AdventHealth Celebration , be her

supervis or ; (2) s he be given a full - time Staff Chaplain posi tion ; (3) her salary

be raised to $20 an hour ; and (4) an award of n on - economic damages for

suffering. 4

25 . AdventHealth argues in its Motion to Dismiss: (1) DOAH lacks

jurisdiction because Petitioner's claims are barred by the "ministerial

exception" or " ecclesiastical abstention doctrine" and/or the religious

organization doctrine; (2) Petitioner's claims are time - barred; and (3) DOAH

cannot address Petitioner's claims under federal law.

26 . As an initial matter, DOAH has jurisdiction over claims of

disc rimination under the FCRA under sections 120.569, 120.57(1), and

760.11(7), Florida Statutes, and Florida Administrative Code Rule 60Y -

4.016. 5

27 . Regarding her federal claims, at the motion hearing , Petitioner

conceded that any references to Title VII, th e Americans with Disabilities Act

(ADA), or the Age Discrimination in Employment Act (ADEA) were in error.

The only claims she is pursuing are for religious discrimination and

retaliation under the FCRA.

4 Damages for non - economic damages such as mental anguish, loss of dignity, and other

intangible injuries for a violation of the FCRA are only available in a civil action, and are not

available in an administrative pr oceeding. Compare § 760.11(5) with § 760.11(6), Fla. Stat.

5 The FCRA is patterned after Title VII of the federal Civil Rights Act of 1964, as amended

(Title VII). As such, Florida c ourts have held that federal decisions construing Title VII are

applicab le when cons idering claims under the FCRA. Harper v. Blockbuster Entm ' t Corp .,

139 F .3d 1385, 1387 (11th Cir. 1998); Valenzuela v. GlobeGround N. Am., LLC , 18 So. 3d 17,

21 (Fla. 3d DCA 2009). See also 42 U.S.C. § 2000e - 3(a).

28. Regarding the second argument that Petitioner's claims are time -

barred, s ection 760.11(1) provides that "[a]ny person aggrieved by a violation

of ss. 760.01 - 760.10 may file a complaint with the [FCHR] within 365 days of

the alleged violation." There is no dispute as to what date Petitioner filed her

co mplaint with FCHR: February 12 , 202 1 . Therefore, any acts before

February 12, 2020 , are time - barred.

29 . Most of the actions Petitioner complains about in her Petition and

Charge occurred prior to February 12, 2020. This includes AdventHealth' s

alleged fa ilure to hire her in 2016 into a permanent position ; her performance

reviews in 2017, 2018, and 2019 ; and any pay disparities during that time.

All of these events occurred more than 365 days before February 12 , 202 1,

and , therefore , are barred.

30 . Petiti oner claims that she did not learn about the demotion to

Chaplain's Assistant or the pay discrepancies until sometime in 2019. To be

viable, Petitioner should have filed a charge of discrimination no later than

the end of 2020 to preserve her right to sue on any claims regarding her title

and pay.

31 . The only claims that remain are those relating to her 2020

performance review and the denial of her request for a change in supervisors.

32 . Pursuant to section 760.10(1)(a), it is an unlawful employment

pra ctice for an employer to "discharge or to fail or refuse to hire any

individual, or otherwise to discriminate against any individual concerning

compensation, terms, conditions, or privileges of employment, because of such

individual's race, color, religion , sex, pregnancy, national origin, age,

handicap, or marital status."

33 . However, section 760.10(9) carves out an exception for religious

employers that condition employment on certain religions or give a

preference to members of specific religious insti tutions:

This section shall not prohibit a religious

corporation, association, educational institution, or

society from giving preference in employment to

individuals of a particular religion to perform work

connected with the carrying on by such

corporat ions, associations, educational institutions,

or societies of its various activities.

34 . This is similar to the federal exception found in Title VII.

(a) This subchapter shall not apply to an employer

with respect È to a religious corporation,

associatio n, educational institution, or society with

respect to the employment of individuals of a

particular religion to perform work connected with

the carrying on by such corporation, association,

educational institution, or society of its activities.

42 U.S.C . § 2000e - 1(a). 6

35 . In addition to the religious organization exception cited above, f ederal

and Florida courts have recognized an " ecclesiastical abstention doctrine " or

" ministerial exception, " to employment disputes between a religious

institution and clergy or religious employees . The purpose of the ministerial

exception is to " ensure that the authority to select and control who will

minister to the faithful -- a matter ' strictly ecclesiastical ' -- ... i s the church's

alone . " Hosanna - Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C. ,

565 U.S. 171, 194 Ï 95 (2012) ; see also Napolitano v. St. Joseph Cath. Church ,

308 So. 3d 274 (Fla. 5th DCA 2020) .

36 . In Hosanna - Tabor Evangelical Lutheran Church , the Supreme Court

held that the First Amendment entitled a religious school to a special

exemption from the requirements of the ADA w hen it discharged a teacher

allegedly because of her disability. Hosanna - Tabor Evangelical Lutheran

6 As explained in Bostock v . Clayton C ounty , Georgia , 140 S. Ct. 1731, 1754 (2020), the

religious organization exception is statutory and based on the Constitution. "Congress

included an express statutory exception for religious organizations. § 2000e Ï 1(a). This Court

has also recog nized that the First Amendment can bar the application of employment

discrimination laws "to claims concerning the employment relationship between a religious

institution and its ministers." Id. (citations omitted).

Church , 565 U.S. at 178 Ï 79. Because the school considered the teacher a

" minist er " since she provided religious instruction for her students, the court

concluded her termination fell within the so - called " ministerial exception " to

generally applicable employment laws. Id. at 180, 132 S. Ct. at 694.

See also Our Lady of Guadalupe Sch ool v. Morrissey - Berru, 140 S. Ct. 2049,

2066 Ï 67 (2020) (finding religious schools were entitled to "ministerial

ex ce ptions " from both the ADA and the A DEA).

37 . In Florida, the " ecclesiastical abstention doctrine " bar s a court from

analyzing religious doc trine, policy, or governance in a civil lawsuit. To

determine whether a dispute is barred by this doctrine, a court must

determine whether the dispute is about " discipline, faith, internal

organization, or ecclesiastical rule, custom or law, " or whether i t is just a

s ecular dispute where one party is a " religiously affiliated organization ."

Malicki v. Doe , 814 So. 2d 347, 357 (Fla. 2002) ; Springhill Missionary Baptist

Church, Inc. v. Mobley , 251 So. 3d 281, 283 (Fla. 1st DCA 2018) (" A lawsuit

does not, of course, become a theological controversy just because one of the

litigants is a church. ").

38 . Although often used interchangeably, the "ministerial exception"

applies the "ecclesiastical abstention doctrine" to employment disputes

between religious employ ees and religious employers. 7 See Napolitano ,

308 So. 2d at 276 (barring breach of employment contract claim; finding

whether former pastor had actual or apparent authority to obligate successor

pastors to retain his chosen employees is one of church gover nance and trial

court lacked subject matter jurisdiction); Mobley , 251 So. 3d at 281 (Fla. 1st

DCA 2018) (affirming dismissal of deacon's complaint for slander and libel

against church); Diocese of Palm Beach, Inc. v. Gallagher , 249 So. 3d 657 (Fla.

4th DC A 2018) (granting writ of prohibition barring defamation complaint

brought by ordained priest in circuit court ) ; Malichi v. Archdiocese of Miami ,

7 Florida courts have also used the ter m "church autonomy doctrine" in lieu of the

"ecclesiastical abstention doctrine." Mobley , 251 So. 3d at 283.

945 So. 2d 526 (Fla. 1st DCA 2007) ( affirming JCC's dismissal of workers '

compensation claim brought by ordain ed priest against church ); Archdiocese

of Miami, Inc. v. Minagorri , 954 So. 2d 640, 641 (Fla. 3d 2007) (barring claim

against religious school brought pursuant to Florida's Private Sector

Whistleblower Act) ; Southeastern Conf. Ass ' n of Seventh - Day Adventis ts, Inc.

v. Dennis , 862 So. 2d 842 (Fla. 4th DCA 2003) ( granting writ of prohibition

barring circuit court from exercising jurisdiction over negligence action

brought by ordained minister) .

39 . Taking the alleged facts in the light most favorable to Petiti oner ,

Ad ventHealth favors Adventists for the "Staff Chaplain" position and

Petitioner has been denied that position because she is not an Adventist. Th e

relief she seeks is to be hired into the Staff Chaplain position and supervised

by the Lead Chaplain. T he hiring of a chaplain and the terms of a chaplain's

employment are "strictly ecclesiastical" issues. Because the undersigned

would be required to evaluate the "discipline, faith, internal organization, or

ecclesiastical rule, custom or law " of both Petit ioner and the Adventist

Church, the "ministerial exception" applies.

40 . Petitioner , however, argues that AdventHealth is not a " religious

corporation, association, educational institution, or society " pursuant to

section 760.10(9) , and that this is not a religious dispute. As stated in the

Findings of Fact, AdventHealth and the other medical campuses are

affiliated with the Adventist Church. Federal courts addressing similar facts

have found that medical facilities affiliated with religious institutions a re

religious entities under the "ecclesiastical abstention doctrine." See Penn v.

New York Methodist Hosp. , 884 F.3d 416 (2d Cir. 2018) (noting that a lthough

only historically connected to a church, hospital employer that retained a

significant portion of its identity through provi ding religious services through

its pastoral care department was exempt from claims of race and religious

discrimination by an African - American hospital chaplain); Scharon v. St.

Luke's Episcopal Presbyterian Hospitals , 929 F.2d 3 60, 362 - 63 (8th Cir.1991)

(finding a hospital chaplain is a ' ministerial ' position and "ministerial

exception" b ar s chaplain's claims under Title VII and A DEA against church -

affiliated hospital) .

41. Based on the undisputed facts regarding AdventHealth's corporate

structure and mission, Petitioner's argument that the ministerial exception

does not apply to AdventHealth is rejected.

4 2 . Because the exemption applies, it is unnecessary to determine

whether Petitioner's allegations are true. T here are only t wo possible

scenarios : e ither AdventHealth did not ma k e its employment decision based

on Petitioner 's religion, in which case Petitioner 's religious discrimination

claim fails ; or AdventHealth did make its employment decision based on her

religion, in whic h case it gets the benefit of section 760.10(9) and the

"ministerial exception." Either way, Petitioner's religious discrimination

claim fails as a matter of law.

4 3 . Turning to the retaliation claim, t he FCRA protects individuals from

retaliation in the w orkplace. Section 760.10(7) states:

It is an unlawful employment practice for an

employer ... to discriminate against any person

because that person has opposed any practice

which is an unlawful employment practice under

this section , or because that pers on has made a

charge, testified, assisted, or participated in any

manner in an investigation, proceeding, or hearing

under this section . (emphasis added).

4 4 . Even if Mr. Greg's statement Ð that Petitioner could never be a

permanent or Staff Chaplain unless she was an Adventist Ð was true,

Petitioner's report of this statement cannot constitute statutorily protected

activity because the FCRA does not apply to AdventHealth or the

employment dispute in this case. As such , Petitioner's retaliation claim fails

as well. See Hosanna - Tabor Evangelical Lutheran Church , 565 U.S. at 132

( a pplying ministerial exception to employment retaliation claim brought

under the ADA).

4 5 . Section 120.57(1)(i) states, in part:

An order relinquishing jurisdiction shall be

rendered if the administrative law judge

determines from the pleadings, depositions,

answers to interrogatories, and admission on file,

together with supporting and opposing affidavits, if

any, that no genuine issue as to any material fact

exists.

4 6 . After consid ering the record and drawing all reasonable inferences in

the light most favorable to Petitioner, the undersigned concludes that no

genuine dispute of material fact exists as to the issue of whether

AdventHealth is exempt from the FCRA under both section 7 60.10(9) and the

" ministerial exception. " Because AdventHealth could not have violated the

FCRA by discriminating against Petitioner based on her religion or retaliated

against her, Petitioner's claims fail as a matter of law, and her Petition for

Relief m ust be dismissed.

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

R ECOMMENDED that the Florida Commission on Human Relations issue a

final order dismissing the Petition for Relief filed by Esther Nunes De Souza

De Lima in FCHR Case No. 2021 - 27936 .

D ONE A ND E NTERED this 21st day of October , 2021 , in Tallahassee, Leon

County, Florida.

S

H ETAL D ESAI

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Fil ed with the Clerk of the

Division of Administrative Hearings

this 21st day of October , 2021 .

C OPIES F URNISHED :

Sylvia R. Adams Tammy S. Barton, Agency Clerk

Advent Health Florida Commission on Human Relations

900 Hope Way 4075 Esplanade Way , Room 110

Altamonte Springs, Florida 32714 - 1502 Tallahassee, Florida 32399 - 7020

Esther Nunes De Souza De Lima Christopher R. Parkinson, Esquire

Advent Health Hospital Moran Kidd Lyons Johnson Garcia, P.A.

500 Sand al Court 111 North Orange Avenue , Suite 900

Altamonte Springs, Florida 32714 Orlando, Florida 32801

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

All parties have the right to submit written exceptions within 15 days from

the date of this Recommended Order. Any exceptions to this Recommended

Order should be file d with the agency that will issue the Final Order in this

case.